Chapter 5 - Standing and Select Committees

Standing Committees

24 Scrutiny of Bills

At the commencement of each Parliament, a Standing Committee for the Scrutiny of Bills shall be appointed to report, in respect of the clauses of bills introduced into the Senate, and in respect of Acts of the Parliament, whether such bills or Acts, by express words or otherwise:

make rights, liberties or obligations unduly dependent upon non-reviewable decisions;

inappropriately delegate legislative powers; or

insufficiently subject the exercise of legislative power to parliamentary scrutiny.

The committee, for the purpose of reporting upon the clauses of a bill when the bill has been introduced into the Senate, may consider any proposed law or other document or information available to it, notwithstanding that such proposed law, document or information has not been presented to the Senate.

The committee shall consist of 6 senators, 3 being members of the government party nominated by the Leader of the Government in the Senate, and 3 being senators who are not members of the government party, nominated by the Leader of the Opposition in the Senate or by any minority groups or independent senators.

The nominations of the opposition or any minority groups or independent senators shall be determined by agreement between the opposition and any minority groups or independent senators, and, in the absence of agreement duly notified to the President, the question of the representation on the committee shall be determined by the Senate.

The committee may appoint sub-committees consisting of 3 or more of its members, and refer to any such sub-committee any matters which the committee is empowered to consider.

The committee shall elect as chairman a member appointed to the committee on the nomination of the Leader of the Opposition in the Senate.

The chairman may from time to time appoint a member of the committee to be deputy chairman, and the member so appointed shall act as chairman of the committee when there is no chairman or the chairman is not present at a meeting of the committee.

When votes on a question before the committee are equally divided, the chairman, or the deputy chairman when acting as chairman, shall have a casting vote.

The committee and any sub-committee shall have power to send for persons and documents, to move from place to place, and to meet in private session and notwithstanding any prorogation of the Parliamentor dissolution of the House of Representatives.

The committee may appoint with the approval of the President counsel to advise the committee.

The committee may report from time to time its proceedings and evidence and any recommendations, and shall make regular reports of the progress of the proceedings of the committee.

Amendment history

Adopted:

[committee established by resolution, 19 November 1981, J.675–77, with its functions to be carried out by the members of the Standing Committee on Constitutional and Legal Affairs]

[established as a separately constituted committee by resolution, 25 May 1982, J.954–55; re-constituted 22 April 1983, J.38, and 22 February 1985, J.35]

Commentary

For background on the establishment of the committee, see Odgers’ Australian Senate Practice, 12th edition, pp.359–60, Australian Senate Practice, 6th edition, pp.457–60 and the committee’s publication, Ten Years of Scrutiny – a seminar to mark the tenth anniversary of the Senate Standing Committee for the Scrutiny of Bills, 25 November 1991. For reports of its operations, see the committee’s regular sessional reports.[2]

The Scrutiny of Bills Committee was first established on a trial basis on 25 November 1981 on the motion of a government senator but against the wishes of the government of the day which voted against it. However, six government senators in addition to the mover crossed the floor to support the motion which was carried by 35 votes to 21.[3] Disputes associated with the establishment of the committee centred on the question of what was the appropriate model for the committee. Its proposer and first chairman, Senator Alan Missen (Lib, Vic), thought that it should have the same inquiry powers and procedural capabilities as a legislative and general purpose standing committee. Others thought that it should closely follow the model set by its illustrious forebear, the Regulations and Ordinances Committee, which, since 1932, had been scrutinising delegated legislation against a set of foundation principles relating to civil liberties and legislative propriety, and had done so successfully without full inquiry powers.

These two models were considered by the Standing Orders Committee following a reference in October 1982, the Senate having agreed in principle to the establishment of a separately constituted standing committee after a six-month trial. In the meantime, the Scrutiny of Bills Committee was established by resolution of the Senate on 25 May 1982 with the full panoply of powers and procedural provisions including for the publication of a daily Hansard, the admission of the press and members of the public, the ability of any senator to attend public meetings and question witnesses, the power to appoint advisers as well as counsel, and the ability to authorise the televising of its proceedings.[4]

The Standing Orders Committee’s work was not completed before the 1983 double dissolution and the Scrutiny of Bills Committee was re-established on the same basis when the next Parliament met. The Standing Orders Committee reported on the Scrutiny of Bills Committee in October 1983. It noted that the committee’s wide-ranging powers had not been used and were unlikely to be used in future. Of the two different models, it favoured the more restrained Regulations and Ordinances Committee model.[5] When the report was debated, the Leader of the Government in the Senate, Senator Button (ALP, Vic), moved the restrained version as SO 36AAA while Senator Missen moved the elaborate version as an amendment. A stalemate ensued and the issue was postponed and not resolved before the end of that Parliament. The elaborate version was again re-established at the beginning of the 34th Parliament in February 1985.

Finally, in March 1987, nearly 18 months after the death of Senator Missen in office, SO 36AAA, the restrained version, as proposed by the Standing Orders Committee in its 1983 report, was agreed to as a formal motion. The restrained version was crafted from the elaborate version by omitting certain provisions, rather than being drafted by reference to the standing order establishing the Regulations and Ordinances Committee. Unlike the latter, the Scrutiny of Bills standing order contained the principles of scrutiny but it also contained superfluous matters that were removed during the 1989 revision, either because they were covered elsewhere or because they were considered unnecessary. In the former category were the power to publish evidence, covered generically in SO 37, and the prohibition on meeting during sittings of the Senate, also covered generically in SO 33. In the latter category were the power to consider evidence and records of the previously appointed committees, a transitional provision no longer required for a committee of this type, and the power to transact business notwithstanding any vacancy, an earlier imitation of provisions applying to legislative and general purpose standing committees and also considered unnecessary.

Chairing arrangements for the committee were affected by the 1994 restructuring of the legislative and general purpose standing committees and associated changes to make committees more responsive to the composition of the Senate. While the Regulations and Ordinances Committee retained a government chair, the chair of the Scrutiny of Bills Committee was designated as an opposition senator. An associated change, relating to quorum provisions for committees and subcommittees, provided greater flexibility but also ensured cross-party balance at meetings. As a consequence, the specific quorum provisions were removed from the standing order, leaving the general quorum provisions in SO 29 to apply.

The committee has power to send for persons and documents, to move from place to place and to meet notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives. It lacks the power to take evidence in public but has not needed to do so for the purpose of its routine work of examining bills against its terms of reference, seeking explanations from ministers about particular provisions in bills and reporting its observations to the Senate. On occasion, the committee has received references from the Senate of legal policy issues such as the appropriate nature of search and entry provisions or the setting of penalties. For these inquiries, and on other occasions as required, the committee has sought, and been granted, authority to hold public hearings. The power of the committee in paragraph (1)(b) to “consider any proposed law or other document or information available to it, notwithstanding that such proposed law, document or information has not been presented to the Senate” is the basis of its ability to consider and present alert digests on bills (and related explanatory memoranda) that have not yet been presented to the Senate.

Like the Regulations and Ordinances Committee, the Scrutiny of Bills Committee has always operated in a non-partisan manner by sticking closely to its principles of scrutiny and leaving it to the Senate to make judgements about the merits of particular policies, especially in areas of controversy like anti-terrorism legislation. While the committee has not made recommendations in its routine reports but has preferred to draw matters to the Senate’s attention, there is no restriction in its terms of reference preventing it from doing so and it would be open to the committee to, for example, recommend particular amendments to a bill. One possible reason the committee has not taken this course so far is its record of persuading ministers of the merits of its arguments. Ministers regularly give undertakings to the committee to take corrective action and, as a result, either move amendments to their own bills or issue revised explanatory memoranda which contain better explanations of problematic provisions.